Kevin Wayne Anderson v. Mitch Morrow, Superintendent, Oregon State Correctional Institution

Kevin Anderson was convicted in 1993 of first-degree rape and sodomy under Oregon laws that prohibit having sexual intercourse with a person “incapable of consent by reason of mental defect.” Or.Rev.Stat. §§ 163.375, 163.405 (the “sex crimes statutes”). He appeals the denial of his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254 . He urges two points: (1) the trial court unconstitutionally excluded evidence of the victim’s sexual history and reputation under Oregon’s rape shield law; (2) the State of Oregon convicted him under an unconstitutionally vague statute. Neither point has merit, and we affirm.

I. Background

The facts of the case were largely undisputed at trial. The victim (hereinafter “JH”) is a 28 year-old moderately retarded woman. Psychiatric evaluators have placed her level of emotional maturity at the six- to eight-year-old level; her communication skills at the five- to seven-year-old level; her adaptive functioning level in the “severely retarded range”; and her overall intellectual functioning level in the “moderately retarded range.” Her hearing, vision, and speech are impaired.

In the past, JH had had two steady relationships with men…

concurring in part and dissenting in part:

Weighty state and personal liberty interests are placed at issue by an extremely important question raised at oral argument in this case: does the Supreme Court’s recent decision in Lawrence v. Texas, 539 U.S. 558 , 123 S.Ct. 2472 , 156 L.Ed.2d 508 (2003), which created a substantive due process right to private consensual sex, have any bearing on the precision with which the government must act when criminalizing an otherwise consensual sexual act on the ground that the sex partner is too retarded to consent to sexual contact? Although the panel reaches the issue, procedural obstacles and prudential considerations militate against doing so. Serious constitutional questions such as this one should not be decided after 90 seconds of oral argument presentation, on appeal from denial of federal habeas relief. I respectfully dissent, principally from the majority’s decision to reach this issue but, because they have determined to decide it, from the majority’s treatment on the merits of Anderson’s Lawrence argument as well.

I.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214, provides, in…

371 F.3d 1027 Kevin Wayne ANDERSON, Petitioner-Appellant, v. Mitch MORROW, Superintendent, Oregon State Correctional Institution, Respondent-Appellee. No. 02-35675. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 2003. Filed June 7, 2004. COPYRIGHT MATERIAL OMITTED Thomas J. Hester, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant. Kathleen Cegla, Assistant Attorney General, Salem, OR, for the respondent-appellee. Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-99-00512-HA. Before: GOODWIN, HUG, and BERZON, Circuit Judges. GOODWIN, Circuit Judge: 1 Kevin Anderson was convicted in 1993 of first-degree rape and sodomy under Oregon laws that prohibit having sexual intercourse with a person "incapable of consent by reason of mental defect." Or.Rev.Stat. §§ 163.375, 163.405 (the "sex crimes statutes"). He appeals the denial of his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254 . He urges two points: (1) the trial court unconstitutionally excluded evidence of the victim's sexual history and reputation under…